Fight or negotiate?

A criminal defense attorney who can only fight takes unnecessary risks and often harms the client's interests. An attorney who can only negotiate and is always agreeable will not be taken seriously and will achieve nothing for the client. A German prosecutor makes a different calculation when facing someone who knows the case file better than the prosecutor does and is not afraid of a trial. The real question is therefore not whether to fight or negotiate. It is when, in what order, and with what tools to pursue a particular strategy. This article concerns criminal defense under German law.

If you want peace, prepare for war

A Roman military writer and a Chicago gangster described the same mechanism that shapes the strategy of the best criminal defense attorneys. Around AD 390, Flavius Vegetius Renatus wrote in the preface to Book III of his Epitoma rei militaris: Igitur qui desiderat pacem, praeparet bellum. If you want peace, prepare for war. A workable agreement becomes more likely when a willingness to contest the case rests on thorough preparation. A loud voice alone is not enough.

Al Capone, one of the most notorious criminals in American history and the feared head of the Chicago Outfit in the 1920s, is credited with a more blunt version of the same thought: You can get much further with a kind word and a gun than you can with a kind word alone.

The saying describes a defense attorney's position remarkably well. The attorney's weapon, however, is no threatening gesture. It consists of knowledge of the case file, formal motions to take evidence, rules barring the use of evidence, a carefully prepared appeal on points of law, and, above all, the better legal argument. Anyone who comes to the negotiating table without a credible alternative will not be taken seriously. Real strength is what makes successful compromises possible.

More than twenty years in criminal defense teach you one thing: agreements work in a client's favor only when the court and prosecution know they are dealing with an attorney who is prepared to contest the case at any time. They then do not even try to take advantage of the defendant. In his Handbuch des Strafverteidigers, the German defense lawyer's handbook, Hans Dahs coined the famous statement that criminal defense is a fight. One might add that most of those fights are won before they take place.

Where do negotiations take place in German criminal proceedings?

Almost everywhere, although they are rarely called that. During the investigation, defense counsel discusses with the prosecution whether proceedings should be discontinued for insufficient grounds to prosecute, whether conditional discontinuance under section 153a of the German Code of Criminal Procedure (StPO) is an option, whether the enforcement of an arrest warrant can be suspended, or whether a penalty order can avoid a public trial. A German penalty order, or Strafbefehl, is a written criminal court order issued without a main hearing, subject to the right to object. At trial, there are discussions about the legal position and the formal agreement under section 257c StPO, often called a deal. This German procedure is distinct from American plea bargaining: the finding of guilt is not negotiable, and the court retains its duty to establish the facts.

A study by Altenhain, Jahn, and Kinzig commissioned by Germany's Federal Ministry of Justice showed in 2020 that informal agreements outside the statutory framework still occur. One secondary finding is striking. Judges, prosecutors, and defense attorneys each said that the initiative usually came from the others. There is a great deal of negotiating, then, but nobody wants to have started it.

What does being ready to fight mean in criminal proceedings?

In a movie, one brilliant question is sometimes enough to make a witness break down. In practice, effective defense often begins less dramatically. Reading. Case files, payment flows, message histories, interview records. Then comes the crucial work. Which facts support the allegation? Where do contradictions remain? What alternative explanation has not yet been examined?

Being ready to fight means pursuing these questions even when they become uncomfortable. That may involve independent investigation, expert advice, formal evidentiary motions, objections, and appeals. Defense counsel must be prepared to disagree with the court. Counsel should also know what specific objective the objection serves. An attorney who signals early on that a lengthy trial must be avoided at all costs narrows the available options. The other side then knows that almost any agreement will appear more attractive than continuing the contested hearing. Thorough preparation and a precise written defense submission during the investigation change that starting point. This is where the best defense strategy begins.

What conflicts typically arise during the investigation?

The first difficult situation often arrives at six in the morning. The doorbell rings, tax investigators or criminal police officers are at the door with a search warrant, and the suspect feels an urgent need to explain everything immediately. That is human, and almost always a mistake. Anyone who talks in that situation is negotiating without knowing the case file against someone who has it. Remaining silent is almost always the best decision in that situation. It takes a firmness that clients rarely manage without an attorney at their side.

Some prosecutors' offices deliberately begin with an inflated assessment of the loss, the number of offenses, or the legal classification. Negotiation psychology tells us that the first number in the room shapes everything that follows. Someone who later celebrates a reduction may simply have received a discount on a figure that was never justified in the first place.

Pretrial detention is particularly burdensome. Courts often justify it with questionable arguments that, in reality, are aimed at extracting a quick confession. Someone who spends twenty-three hours a day in a cell evaluates an offer differently from someone who goes home at night. In Japan, this mechanism has acquired its own name: hostage justice.

Public officials are people, too, and want to save face. No one likes abandoning an indictment once it has been filed. “We never go below three years in a case like this.” Then there are coffee breaks in the courthouse cafeteria and conversations between judges and prosecutors that a good defense attorney has to take into account.

Unresolved cases are piling up in German prosecutors' offices. Anyone handling extensive white-collar or criminal tax investigations has a tangible interest in reducing the stack of files. It is worth looking at how heavy the workload is. When defense counsel senses how much pressure the other side is under, that becomes something to work with.

What challenges arise at trial?

In a German criminal trial, the judge has read the case file before the first witness enters the courtroom. In a widely cited experiment, Munich criminal law professor Bernd Schünemann presented judges and prosecutors with the same deliberately inconclusive case. Every judge who had prior knowledge of the case file convicted. Without that prior knowledge, acquittals predominated. Those who convicted also recalled less accurately what the witnesses had actually said. A preconception formed from the file filters perception. For the defense, the uncomfortable lesson is that an attorney who waits until closing argument to start persuading the court is too late.

The second challenge is the sentencing differential, known in Germany as the Sanktionsschere. The defendant is told what sentence to expect with a confession and what sentence to expect without one. The wider the gap, the less freely the decision is made. Evidence from the United States shows that this kind of pressure can lead even innocent people to plead guilty.

The third challenge is the client. Many defendants agree to a deal simply because the uncertainty makes them restless and they want clarity. That wish is understandable. In hindsight, however, it often turns out that a little more willingness to accept risk would have produced a better result. The opposite happens, too: an objectively excellent offer fails because it conflicts with the client's self-image. Both situations require an attorney who can listen and give the client an honest assessment, even when it is unwelcome.

The fourth challenge is the other defense attorneys. In a case with several defendants, one colleague who wants a deal at any price is enough to weaken everyone's negotiating position.

Then there is so-called confrontational defense, or Konfliktverteidigung. The term is usually meant as a criticism. In a column worth reading, Thomas Fischer showed that it is above all a label applied from the judiciary's perspective. A motion to take evidence is not an attack on the court. A motion to disqualify a judge for bias is not an insult to the sovereign. Both are rights German law gives the defendant, and attorneys who never use them eventually stop being consulted. Courtroom theatrics are another matter. They harm the client and are not part of our repertoire.

How should a good negotiated outcome be measured?

For one client, acquittal comes first. Another primarily wants to avoid a public trial. A physician may be most concerned about keeping a medical license, an entrepreneur about keeping a business running, a managing director about the threshold at which German law disqualifies them from managing a GmbH, and a civil servant about a pension. Other collateral consequences of a criminal conviction may include the loss of a driver's license or a firearms possession permit. Someone in pretrial detention values time differently from someone living at home during the proceedings. These concerns must be discussed before deciding whether to reach an agreement.

Why is negotiating not the same as confessing?

A discussion about the legal position can help clarify the case. Defense counsel can point to exculpatory documents, explain a legal objection, or ask what further investigation is considered necessary. Speaking in this setting does not by itself admit the allegation or surrender the right to contest the case. Nevertheless, the decision about what information to disclose and when must be made carefully. A premature statement about the facts cannot simply be taken back. Go too far, and you cross the point of no return.

Conditional discontinuance under section 153a StPO does not require a confession. Once the conditions are properly fulfilled and the proceedings are finally discontinued, there is no criminal conviction; this is nevertheless not an acquittal. A formal agreement under section 257c StPO, by contrast, should include a confession. Unlike an American guilty plea, the agreement does not relieve the German court of its duty to establish the facts. The difference can shape years of a person's life. A published appeal brief from our practice concerning a failed agreement shows what this looks like. The court had treated the defendant's consent to a proposed agreement as a comprehensive confession, even though he had expressly denied a material part of the allegation.

What can we learn from Harvard, the FBI, and psychology?

One well-known negotiation model became famous as the Harvard approach. Its guiding principle: be firm on the substance and respectful toward the people.

The model's most important idea is the distinction between a position and an interest. A position is what someone demands. An interest is the reason for that demand. An example from practice: a prosecutor had filed an indictment, and his expectations for the outcome were ambitious. In conversation, it emerged that something else mattered to him. He wanted a particular business practice to stop. Searches had been carried out, the press had reported on them, and everyone had understood the message. Once that became clear, the prosecutor was willing to consider discontinuance under section 153a StPO.

The second theoretical building block goes by the cumbersome acronym BATNA: the best alternative to a negotiated agreement. In criminal proceedings, that generally means continuing the proceedings, potentially through a contested trial. Someone who rejects a deal cannot simply go home and find another party to contract with. The case continues, and its outcome remains uncertain. A serious assessment must therefore consider favorable and unfavorable developments. What further evidence might emerge? How sound is the legal position? What burdens of time, money, and personal strain will follow? An attorney who assesses the alternative dispassionately negotiates from strength rather than need.

The Harvard approach has its limits, too. It is excellently suited to major political negotiations, but only to a degree to everyday dealings with prosecutors. A colleague described a fraud case involving almost nine hundred thousand euros in losses. He suggested to the prosecutor that surely the prosecutor's interest was in having the victims get their money back. The answer came privately in the hallway. The money did not matter to him; the woman should go to prison. An analysis of interests gets you nowhere against that attitude. Only a substantive fight in court will help.

Chris Voss spent more than twenty years with the FBI, where he worked as a negotiator persuading hostage-takers to release their captives. From that work, he developed his approach of tactical empathy. Its starting point is that everyone needs to be taken seriously. People who feel truly heard open up. That is the basic requirement for any negotiation, including one with a prosecutor who wants to reduce her stack of files by one.

Voss recommends several surprisingly simple techniques. Repeat the other person's last three words as a question, and encourage them to keep talking. Joseph Weizenbaum demonstrated a related effect in the 1960s with his computer program ELIZA, an early predecessor of today's AI chatbots, which also use conversational mirroring. The machine reflected what people said back to them, and they came to trust it. Weizenbaum found that disturbing.

A second technique is to ask open-ended questions beginning with “what” and “how” instead of “why.” “Why won't you discontinue the case?” puts the other person on the defensive. “What would need to happen for you to consider discontinuing the case?” invites thought. Voss tells the story of a kidnapper who demands a million dollars. The person receiving the call calmly asks how they are supposed to manage that. Suddenly, it is the kidnappers who are wrestling with the other person's problems.

German prosecutors are required to investigate exculpatory circumstances as well. That is expressly stated in section 160(2) StPO. Treating every prosecutor as a personal adversary and every concession as weakness would therefore be professionally misguided. At the same time, the defense cannot assume that its position will find its way into the decision on its own. Sometimes the useful question is simply what specific information would be needed for a different assessment. Sometimes a short submission supported by clear evidence is more effective than a long speech.

What psychological mechanisms operate without our noticing?

Psychologist Robert Cialdini has described principles of persuasion that work. One is reciprocity. People who receive something want to give something back. A court that has spent weeks on a large case notices whether the defense refrains from objecting to Germany's procedure for reading documentary evidence outside the hearing, dispenses with hearing a twelfth witness on an undisputed fact, or does not object to a record being read aloud. These concessions can cost the client nothing if counsel has checked their consequences and concentrates on what matters. An attorney who is generous on unimportant points is taken more seriously when standing firm on important ones.

Comparison with others is a mechanism that operates particularly strongly in the justice system, unfortunately not always in the defendant's favor. Other courts and prosecutors' offices have decided comparable cases this way, so why not here? Lawyers do this all the time. Even so, it helps to understand why it works and when it can be put to use.

Likability is underestimated. Asked about the most important quality in a negotiator, Gary Noesner, the FBI's longtime chief negotiator, said that being liked matters. That includes an honest compliment. One defense attorney described a tense meeting with an investigator in a German Cum-Ex tax case. He told her that uncovering these mechanisms was a good thing, even though the question of criminal liability had been difficult. She replied that no defense attorney had ever said that to her before. The atmosphere changed.

How do cognitive errors affect prosecutors and judges?

In his classic Thinking, Fast and Slow, Nobel laureate Daniel Kahneman describes two systems of thought. The first works quickly and intuitively, and we can do little to resist it. The second thinks carefully and is, unfortunately, rather lazy. Most of the time, people operate in the first system, which is vulnerable to systematic errors. Prosecutors and judges are people.

The most consequential error is the tendency to seek confirmation. Once someone has formed a suspicion, they mainly find what supports it. That suggests practical advice that American movies do not always follow. It is usually wise to present exculpatory facts early rather than save them for a grand performance at trial. German law already requires prosecutors to investigate exculpatory matters. It makes sense to help them before their view hardens. And because people love stories, listing gaps in the evidence is not enough. What persuades is an alternative account explaining what actually happened. Our report on a criminal trial involving one person's word against another's shows how difficult courts can find it to correct a view they have already formed.

A German experiment on anchoring has become famous. Birte Englich, Thomas Mussweiler, and Fritz Strack presented legal professionals with courtroom experience with a hypothetical shoplifting case. First, they had them roll loaded dice. One group rolled a total of three; the other, nine. Everyone knew that the roll had nothing to do with the case. Even so, the first group proposed an average sentence of about five months, and the second about eight. If even a die can shift a proposed sentence, what effect can the prosecutor's sentencing request have? For the defense, the lesson is to state a reasoned figure early. Faced with an excessive demand, counsel must not simply nod without reacting. Negotiators call a clear recoil the flinch. The anchor has to be challenged before it takes hold. Otherwise, the negotiation may become nothing more than a discussion of the discount on the other side's number.

Before making a proposal, think about how the prosecutor can defend the outcome within the office. “Conditional discontinuance after extensive assistance in clarifying the facts” is defensible. “We caved in” is not. Another technique is an inconspicuous closing phrase. Studies from France have shown that people comply with a request considerably more often when told that the decision is, of course, theirs. Nobody likes being patronized, least of all prosecutors and judges.

An attorney owes this same attentiveness to their own thinking. Anyone who has settled early on “acquittal” or “deal” must continue to examine facts that undermine their own prediction. A strategy is only as good as the willingness to revise it when new information emerges.

Does this also apply to written submissions?

Yes. Hamburg communication psychologist Friedemann Schulz von Thun identifies four features of understandable writing: simplicity, structure, brevity, and stimulating additions. What is not understood does not persuade. A submission of more than ten pages needs an outline. The most important point belongs at the beginning, because the first impression sets the frame and nobody can guarantee full attention from page two onward. The strongest argument may reappear at the end. Repetition creates familiarity, and people are more likely to regard something familiar as true. If a telling chat message or document gets to the heart of the matter, it belongs in the text, not buried in the exhibits.

Is criminal defense a science, then?

No. The experiments described come from the laboratory and do not replace professional experience. In a laboratory, you can give the same case to a hundred judges and load the dice. In real life, each case happens only once. Nobody can conduct the same proceedings first with an agreement and then again as a contested trial to compare which would have been better. There is no control group. Whether silence was the right choice or an early statement, whether the decisive factor was an evidentiary motion or the conversation during a recess, is never known with certainty. A colleague once compared a criminal trial to a soccer match without a running score. Only at the final whistle does the defendant learn which goals the court has counted.

Criminal defense therefore resembles an art more than a science. Psychology supplies the scales and finger exercises. An attorney who started applying every technique at once in tomorrow's meeting with the prosecution would make a fool of themselves. These are not miracle techniques. People who practice and internalize them over years have better conversations. In ninety-five percent of cases, that may change nothing. What matters is the five percent where it does.

When do we recommend an agreement, and when a fight?

That depends first on what the client needs. A sentence can be expressed in months; a life cannot. In those circumstances, conditional discontinuance can be worth more than the prospect of an acquittal after two years of uncertainty.

We recommend an agreement when the offer is better than what a sober assessment suggests can be expected at trial, and when the client fully understands the consequences. We recommend a fight when unresolved evidentiary issues are to be replaced by a quick signature, when the collateral consequences of a confession remain unclear, or when the allegation is simply untrue. Particular caution is called for when the client mainly wants to give in out of exhaustion. “I just want it to be over” deserves understanding. Defendants who have acted on that wish have often later regretted giving up too soon.

In the Fair Trials report Young minds, big decisions, the person introduced as Amina describes pleading guilty under personal and family pressure. She later regretted it and maintained her innocence. American prisoner Jerry Metcalf describes the opposite regret. He does not deny his offense in his account for The Marshall Project. Looking back, he regrets rejecting an offer and choosing a confrontational strategy at trial. These foreign procedures cannot be equated with a German agreement under section 257c StPO. Both accounts nevertheless show the importance of keeping a cool head and remembering what is really at stake.

A false confession is not an option for a good defense attorney. Even an agreed outcome must be measured against the law and the truth. The decision to confess or consent to an agreement always belongs to the client. Nobody may make it over the client's head.

Why is the better legal argument the strongest weapon?

Because kind words bind no one, while a legal error has consequences. A German prosecutor who wants to discontinue a case needs reasons that can be defended to the department head and, if necessary, the higher prosecutorial authority. A judge who wants to acquit or impose a more lenient sentence needs reasons that will withstand an appeal by the prosecution. Defense counsel supplies that reasoning. If intent is missing, prosecution is time-barred, the decisive evidence cannot lawfully be used, or the tax loss has been calculated incorrectly, a request becomes an argument that cannot be ignored.

A top defense attorney must therefore first and foremost be an excellent lawyer. The law is the weapon in Al Capone's metaphor. It works even when it is never drawn. A court that knows counsel can and will challenge an unlawful agreement through a Revision works more carefully. In German criminal procedure, a Revision is an appeal on points of law, not a new trial on the facts.

That is especially true in the areas in which we mainly work. A white-collar or criminal tax case often turns on a preliminary question of accounting, corporate law, or tax law that has little to do with criminal law in the narrow sense. Anyone who does not master that question can negotiate as skillfully as they like. They are still negotiating over the wrong number.

How do you recognize the best criminal defense attorney?

Anyone searching for the best criminal defense attorney in Nuremberg or the best lawyer for criminal tax law usually faces a decision with a great deal at stake. The honest answer is that there is no single best attorney, but there is a right attorney for a particular case. Can the attorney explain the allegation in terms you understand? Do they identify risks as well as opportunities? Do they ask which consequences matter most to you? Can they explain why they now recommend silence, discussion, or objection? Have they published legal articles and briefs that let you examine their work? Do they have years of experience and the necessary depth of legal knowledge?

Be wary of anyone who promises success or advertises good connections with judges and prosecutors. A good working relationship with the other side is useful. It cannot replace knowledge of the file or a legal argument. What matters is whether the defense remains professionally independent and develops its recommendation from the particular case.

At Rudolph Rechtsanwälte in Nuremberg, the partners hold both German specialist lawyer qualifications, Fachanwalt, in criminal law and in tax law. Handelsblatt includes the firm in its Germany's Best Lawyers list. Dr. Tobias Rudolph placed first in his university's cohort in the First State Examination in Law and has defended white-collar and criminal tax cases for more than twenty years, with a particular focus on appeals on points of law and legally demanding proceedings. Our published articles and samples of our legal work let you form your own impression.

How do we proceed when you retain us?

The starting point is access to the case file, because without the file any strategy is guesswork. We then discuss with you what you are accused of, the basis for the allegation, and which objectives take priority. From that, we develop the defense. Often, the first step is a written submission showing the prosecution the legal and factual weaknesses in the allegation. That provides a basis for discussion. If the discussion produces no result, the trial is the open sea on which the battle must be fought.

If you are under investigation in Germany, please make no statement about the allegation before speaking with defense counsel. Contact us. We also advise clients in English. This English-language website provides information about criminal defense under German law.

Fight or negotiate? If you want peace, prepare for war. And those who prepare well find, surprisingly often, that they do not have to fight.